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May XX, 2019

Tarah S. Malek v. Anthony W. Romano

S. Ct. Civ. No. 2017-0038

Considering mother’s appeal from a Superior Court order granting physical custody of her minor child to the child’s father, in which she argued that the Superior Court erred in finding that there had been a substantial and continuing change in circumstances warranting modification of physical custody, on the issue of whether the order is appealable, considering the applicable case law and the important policy interests that must be balanced in child custody proceedings, a custody order will be considered final by operation of 4 V.I.C. § 32(a), and therefore appealable, only if it (1) is entered after the Superior Court has completed a full hearing on the merits; and (2) disposes of all the issues relevant to the proceedings then presented before the court. In custody proceedings, this means that a custody order is final and appealable only if it comes after a full adversarial hearing on the matter where the trial court considered sufficient factors it found to be relevant to the best interests of the child, and if it disposed of all the issues then presented to the trial court. Applying this standard, the Superior Court’s December 1, 2016 order is a final, appealable order, because it was entered after the court had conducted a full adversarial hearing where both parties were allowed to testify and present evidence, and it resolved all issues relevant to the child custody determination by disposing of all pending motions, and by placing the child in the father’s physical custody. While it is true that in child custody proceedings there always exists some possibility that future developments might require modification of custody at some later date, a custody determination like the one appealed from in this case will remain final and permanent unless such developments take place and a motion seeking modification based on those developments is filed with the court, consistent with 16 V.I.C. §110. Additionally, because the record contains ample evidence supporting the Superior Court’s findings of fact, it cannot be concluded either that those findings were clearly erroneous, or that the Superior Court abused its discretion in entering its order modifying custody. Accordingly, the order of the Superior Court granting physical custody of the minor child to father is affirmed.

The Superior Court committed no error when it held a member of the Virgin Islands Bar in criminal contempt for his conduct at hearing in refusing to abide by an appointment order to represent a client, entered two weeks previously. The record does not reflect that the Superior Court violated any of the attorney’s constitutional rights, or that it applied the incorrect legal standard in imposing contempt sanctions. Nor was the judge presiding over the matter under any obligation to recuse herself sua sponte. The evidence was more than sufficient to sustain the criminal contempt conviction on either a theory of obstruction of the administration of justice or willful disobedience of a lawful order, and the likelihood that the appointment order may have actually been erroneous does not excuse the attorney’s refusal to abide by that order. Likewise, the Superior Court committed no error when it held attorney in civil contempt for his failure to appear at an ordered show cause hearing. The Superior Court’s February 15, 2017 order is affirmed in its entirety, and this matter is referred to the Office of Disciplinary Counsel and the Board on Professional Responsibility for further investigation as to whether the attorney may have violated Rule 211.1.16(c) or Rule 211.3.5(d).

In a domestic relations case with contested issues of visitation and child custody, because there is no statute or court rule authorizing automatic re-transfer to the original judicial district when a party ceases employment with the Superior Court, the St. Thomas Family Judge erred in granting the father’s motion to transfer the case back to St. Croix without awaiting a response from the mother and without determining whether a transfer was warranted under 4 V.I.C. § 78(b). The transfer order of June 16, 2016 is vacated. Even if it were appropriate to transfer venue, the St. Croix Family Judge erred by presiding over the case after having previously recused herself. On remand the Clerk of the Court shall reassign the matter to the St. Thomas Family Court Judge, who shall exercise jurisdiction over the matter, including ruling under the proper legal standard on any renewed motion to retransfer venue to St. Croix after all parties have an opportunity to be heard. In the event that retransfer is again ordered on a renewed motion, the case shall not be re-assigned to the St. Croix Family Judge who previously recused herself. All orders entered by the St. Croix Family Judge after her order of recusal are vacated as nullities having no legal effect. Because this includes the February 21, 2017 visitation order, the August 14, 2017 visitation order, and the December 29, 2017 order granting the father interim custody, the St. Thomas Family Judge is directed to immediately enter a new interim order to address both visitation and child custody.

Convictions on charges of aggravated rape in the second degree as an act of domestic violence in violation of 14 V.I.C. § 1700a(a) and 16 V.I.C. § 91(b)(6), and incest in violation of 14 V.I.C. § 961, are affirmed. The Superior Court did not err or violate the defendant’s constitutional rights when it granted the People’s motion to amend the information or in denying in part his motion for judgment of acquittal. defendant is not deprived of his right to notice of the charges against him when the prosecution amends an information to add a lesser-included offense since the elements of the lesser offense are necessarily contained in the greater. Here the defendant had every opportunity to prepare a defense regarding whether he perpetrated an act of sexual intercourse or sodomy and whether the victim was his spouse, and had sufficient notice to defend himself concerning both elements. He also had abundant notice that the victim’s age was an element of the charge he faced—and the prosecution’s allegation that the victim was a minor—from the information that included the charge of aggravated rape in the first degree. Because aggravated rape in the second degree under former § 1700a(a) did not require the prosecution to prove any additional or different elements beyond the required elements of aggravated rape in the first degree under former § 1700(a)(2), it was a lesser-included offense of aggravated rape in the first degree. In ruling on the defense motion for judgment of acquittal the Superior Court correctly reasoned that because the prosecution elicited testimony that the victim was the defendant’s daughter, she could not possibly be his spouse as a matter of law. Because the victim was 14 at the time of the incident, the prosecution was not required to prove that he used force, intimidation, or his position of authority to accomplish the sexual act in order to establish guilt under § 1700a(a). In light of expert DNA testimony that there is a 99.9999 percent likelihood that defendant was the father of his daughter’s child, the prosecution also introduced sufficient evidence from which a reasonable jury could the defendant guilty of aggravated rape in the second degree and incest, and the Superior Court did not err in denying his motion for judgment of acquittal. The September 15, 2016 judgment and commitment is affirmed.

Convictions for first degree rape as an act of domestic violence, 14 V.I.C. § 1701(a)(4), and unlawful sexual conduct in the first degree, 14 V.I.C § 1708(a)(6), as acts of domestic violence under 16 V.I.C. § 91(b)(6), are vacated and the order denying a motion for judgment of acquittal is reversed. The plain meaning of the word “stupor” in 14 V.I.C. § 1701(a)(4) is a mental condition marked by absence of spontaneous movement, greatly diminished responsiveness to stimulation, and usually impaired consciousness. Reading § 1701(a)(4) in its entirety, dulled sensibility must be so great as to prevent the victim from being able to resist sexual intercourse. While the evidence supports the inference that the putative victim in this case was tired at the time of the incident, it is insufficient to demonstrate her state of mind as required by § 1701(a)(4): that her sensibility was so greatly dulled as to prevent her from being able to resist sexual intercourse. In addition, because the alleged stupor in this case was not induced by an intoxicating, narcotic or anesthetic agent, the People were required to prove that the victim was known by defendant to be in such state of stupor, and here there was insufficient evidence to show, beyond a reasonable doubt, that the defendant had knowledge of her dulled state of mind. On the charge of engaging in sexual contact with a person not his spouse, knowing that her mental capacity was compromised, in violation of 14 V.I.C. § 1708(a)(6), although not defined by the Legislature in the statute, the plain meaning of “unconscious” is (a) not knowing or perceiving: not aware and (b) free from self-awareness. Here, the People failed to introduce sufficient evidence to support the inference that the victim was unconscious at the time of the sexual contact act. The contention that this defendant is guilty under § 1701(a)(1) generally, despite not being charged under this subsection, because his fraudulent misrepresentation of himself as the victim’s husband should invalidate her consent, is without merit. Generally, in the absence of a statute, where a woman is effectively capable of consenting and does consent to sexual intercourse, the perpetrator is not guilty of rape even though consent was obtained through fraud. Under the circumstances of this case, and in absence of a rape by fraud statute in the Virgin Islands, the conviction for first-degree rape cannot stand. The Superior Court’s order entered July 18, 2017 is reversed and the Superior Court is instructed to enter a judgment of acquittal in accordance with this opinion.

In a personal injury, premises liability action, the Superior Court erred in granting summary judgment in favor of the defendant because the plaintiff demonstrated the existence of a genuine issue of material fact as to whether the defendant had constructive notice of the dangerous condition of a wooden bench on the premises. Summary judgment is a drastic remedy and should not be used to short-circuit litigation by deciding disputed facts without permitting the parties to reach a trial on the merits. The burden is on the moving party to identify those portions of the record that demonstrate the absence of a genuine issue of material fact, at which point the burden shifts to the non-moving party to present affirmative evidence from which a jury might reasonably return a verdict in his favor. Here the Superior Court did not err in treating plaintiff’s arguments regarding foreseeability of the incident as addressing the question of defendant’s notice of a dangerous condition. To establish that the defendant breached its duty, plaintiff must show that it had actual or constructive notice of the condition, not merely that the incident was foreseeable. Here, however, the plaintiff – in responding to the motion – identified conflicting testimony of the defendant’s employees about the frequency and the reasonable nature of its inspections of the benches, and thus demonstrated the existence of a triable issue concerning whether the defendant had constructive notice of the defect. As a result, the defendant failed to establish that it was entitled to the drastic remedy of summary judgment, and the Superior Court erred in granting that motion. The judgment is reversed.

After the prior appeal decided in Rodriguez v. Bureau of Corrections, 58 V.I. 367 (V.I. 2013), the petitioner filed another petition for a writ of habeas corpus with the Superior Court, which that court denied. There was no error in dismissing this most recent petition for writ of habeas corpus after determining that it was procedurally barred. Because this Court already addressed the petitioner’s due process claims of perjured testimony and prosecutorial misconduct in considering his previous petition seeking a writ of habeas corpus, further review of those claims is denied under the abuse of the writ doctrine. Further, because the United States Court of Appeals for the Third Circuit held on direct appeal that there was sufficient evidence to convict this petitioner of first degree murder and possession of an unlicensed firearm during the commission of a crime of violence, review addressing this same sufficiency of the evidence challenge as raised in the current petition for habeas corpus relief is declined, since consideration by this Court of this fact-based claim would not in any way implicate the role of this Court as the court of last resort for the Virgin Islands with the final authority on issues of Virgin Islands law. Accordingly, the Superior Court’s denial of this petition for writ of habeas corpus is affirmed.

In an appeal from a Superior Court order denying a former wife’s motion to vacate a portion of a mediated settlement agreement, contending that her former husband fraudulently misrepresented the amount of money owed under a contract for construction of the marital home, it is concluded that §§ 162 and 164 of the Restatement (Second) of Contracts represent the soundest rules of decision for the Virgin Islands. To prevail on a claim to rescind a contract based upon fraud in the inducement, a party must show that: (1) there was a misrepresentation, (2) the misrepresentation was fraudulent or material, (3) the misrepresentation induced the recipient to enter the contract, and (4) that the recipient's reliance on the misrepresentation was reasonable. A misrepresentation is fraudulent where the maker intends his assertion to induce a party to manifest assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that he states or implies for the assertion. A misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent, or if the maker knows that it would be likely to induce the recipient to do so. Claims for rescission of contracts based upon fraudulent misrepresentation require proof by clear and convincing evidence. Because the Superior Court failed to consider each piece of evidence presented in support of the former wife’s claim, this matter is remanded for the court to make specific findings of fact with respect to each of the five items of evidence presented, and to explain its determinations concerning the credibility and weight of that evidence. After making its findings of fact, the Superior Court shall apply the law of fraudulent inducement set forth in this opinion to determine whether, considering all the evidence together, the former wife has demonstrated by clear and convincing evidence that the former husband misrepresented the amount of money owed for the construction and, if so, whether she has satisfied the remaining elements of her claim for rescission based upon fraud in the inducement.

The judgment of the Superior Court granting a defense motion for judgment on the pleadings in a legal malpractice action, and denying leave to amend the complaint is affirmed. After analysis it is concluded that the majority rule specifying the elements for a claim of legal malpractice based in tort—requiring (1) an attorney-client relationship giving rise to a duty; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) damages—is the soundest rule for the Virgin Islands. In this case the plaintiff failed to allege facts that would prove two elements of a claim for legal malpractice based in tort: (1) a causal connection between the negligent conduct and the resulting injury, and (2) damages. Thus the motion for judgment on the pleadings was properly granted. The Superior Court’s denial of a consolidated motion for reconsideration and for leave to amend the complaint is also affirmed. Plaintiff has essentially reargued the same points he already made in previous filings with the court (which is insufficient under the standards for granting a motion to reconsider), and the Superior Court properly denied the motion to amend the complaint in this action as futile. The Superior Court’s judgment dismissing this case based on its orders dated July 2, 2014 and August 22, 2014 is affirmed.

Orders entered by the Superior Court of the Virgin Islands pertaining to a child custody case are vacated and the Superior Court’s jurisdiction over the child custody matter is terminated. A request for imposition of monetary sanctions is refused. Although the custody action commenced within six months of the child leaving the Virgin Islands as permitted by 16 V.I.C. § 127 (a)(1), the Virgin Islands was never the home state of the child, who had never lived in the territory for six months. Moreover, the record lacks evidence that the child has a substantial nexus to the territory or that another state has declined to exercise jurisdiction. On the date the action was filed in Superior Court, another state had already become the child’s home state and had jurisdiction to make an initial custody determination. Because the Superior Court lacked jurisdiction to enter its 2014 custody order, that order and all orders emanating from it are vacated, and all notices of appeal relating to those orders are moot. The parties are encouraged to initiate custody proceedings in a state that has jurisdiction. This matter is remanded for proceedings consistent with this opinion.

On appeal from a judgment of the Superior Court denying a petition for a writ of habeas corpus that alleged ineffective assistance of counsel, the judgment is affirmed. Issues previously raised on direct appeal are unsuitable to be re-litigated with a petition for a writ of habeas corpus, and thus certain of the claims in this petition are barred. The claim that petitioner was denied effective assistance of counsel by his trial attorney’s failure to cross-examine a government witness requires a showing that counsel’s performance was deficient and that petitioner suffered prejudice as a result. Regarding the alleged prejudice from failure to cross-examine, any mitigation of the offense such examination could have produced was already in the record for the jury to consider. Even if petitioner was prejudiced by failure to cross-examine the witness, petitioner failed to demonstrate that counsel’s decision was not part of a sound trial strategy, and thus has failed to meet the high burden to satisfy either prong for a successful ineffective assistance claim. The claim based on failure to call the medical examiner as a witness is similarly without merit. The judgment dismissing the petition for writ of habeas corpus is affirmed.

In response to an order to show cause as to whether pro hac vice admission should be denied in light of an allegation that the applicant has engaged in the unauthorized practice of law in the Virgin Islands, the motion for pro hac vice admission is denied. The New York attorney seeking pro hac vice admission was directed by prior order of this Court to execute the required oath of office before the Clerk of the Court. However, she appeared as counsel for the defendants in a pending litigation at a mediation that occurred on prior to taking the oath. Reliance by the attorney and her sponsor on American Bar Association Model Rule of Professional Conduct 5.5(c) is misplaced, since that provision was never applicable in the Virgin Islands, and its adoption was expressly declined in the order promulgating the Virgin Islands Rules of Professional Conduct, which also invoke 4 V.I.C. § 443. Applying Rule of Professional Conduct 211.5.5 and § 443—the correct legal authorities—it is clear that the applicant engaged in the unauthorized practice of law when she appeared as counsel at the mediation. Accordingly the petition to admit this attorney pro hac vice is denied, and this matter is referred to the Office of Disciplinary Counsel, the Board on Professional Responsibility, the Board on Unauthorized Practice of Law, and the Virgin Islands Attorney General, for the purpose of taking any additional action which they may find appropriate with respect to the conduct of the applicant and her sponsor in this matter.

There was sufficient evidence to support a defendant’s convictions for the crimes of second degree aggravated rape of his minor daughter under 14 V.I.C. § 1700a(a) as an act of domestic violence pursuant to 16 V.I.C. § 91(b)(6), and child abuse pursuant to 14 V.I.C. §§ 503 and 505. At any time prior to verdict the information in a criminal case can be amended unless it adds a new or different offense, or would prejudice a substantial right of the defendant. Here the essential elements of second degree aggravated rape were alleged in the original information, which specifically stated that defendant and the victim have a familial relationship of father and daughter, indicating that his position of authority over the victim would be the aggravating factor the People intended to pursue. Defendant had adequate notice of the charges and no prejudice to his case is found in the amendment of the information to specify that factor. Under the totality of the circumstances, the trial court did not abuse its discretion in allowing the prosecution to amend the information after it rested its case. Testimony elicited by the prosecution that defendant and the victim’s mother began an intimate relationship when she was only 14 years old was improper. However, because this was an isolated question in response to which immediate curative actions were taken, and the evidence of guilt was overwhelming, it is highly unlikely that such error affected the trial outcome. Therefore, the trial court did not abuse its discretion in denying a motion for a mistrial. The convictions are upheld and the judgment is affirmed.

Multiple convictions stemming from a homicide and firearms prosecution are affirmed in part and reversed in part. The defendant’s concurrent sentences for second-degree murder, unauthorized use of an unlicensed firearm during that crime, and destruction of evidence do not violate the prohibition against double jeopardy, as the charging statutes underlying these counts contain separate and distinct elements, and no offense for which the defendant was convicted and sentenced is a lesser included offense of another. However, in this case three of the other counts are lesser-included offenses to Count Three, in that the People were not required to prove any additional elements to obtain convictions not required to obtain a conviction under Count Three. Two additional counts did not require the People to prove any elements beyond those required to obtain a conviction for Count Four. Consequently, the Blockburger test is satisfied, and all seven of these convictions come within the purview of the Double Jeopardy Clause of the Fifth Amendment. The Superior Court was required to announce a sentence for only a single conviction of each group of offenses, and then to vacate—rather than merge or stay—the remaining offenses within that group. The Double Jeopardy Clause is not violated by the conviction for reckless endangerment in the first degree since that charged required the People to prove that the conduct occurred in a public place, which was not an element of any other count, but that conviction nonetheless violates 14 V.I.C. § 104 because the act that gave rise to the reckless endangerment conviction occurred as part of an indivisible course of conduct. Upon reexamination of the holdings of Williams v. People, 56 V.I. 821 (V.I. 2012), that portion of such decision mandating merger-and-stay as the remedy for a violation of § 104 is overruled. Vacatur shall be the remedy in cases in which § 104 is implicated, just as is the case with violations of the Double Jeopardy Clause. Because the convictions for Counts Five through Nine violate either the Double Jeopardy Clause or 4 V.I.C. § 104, the case is remanded with instructions for the Superior Court to vacate those convictions. Reviewing the jury instructions in this case as a whole for plain error, the jury was properly instructed on the definition of malice aforethought and could freely apply that definition to both counts challenged on this appeal, and the instructions were neither misleading nor inadequate to guide the jury’s deliberations. The Superior Court’s judgment and commitment with respect to Counts Three, Four, and Ten is affirmed.

Convictions for second-degree murder and other offenses are affirmed. Defendant was charged with numerous offenses stemming from a shooting death at the St. Thomas office of the Bureau of Motor Vehicles. The conviction for second-degree murder required proof beyond a reasonable doubt that defendant killed the victim with malice aforethought. The use of deadly force cannot be justified if the killing is unnecessary to repel an immediate and real threat, or is unnecessarily disproportionate to the threat posed, and in this case the People introduced sufficient evidence for the jury to conclude that the killing was not justified. The jury could reasonably reject defendant’s testimony and credit other evidence that indicated that he was the initial aggressor or used disproportionate force against the victim. There was also sufficient evidence that the events occurred in a “public place” sufficient to support a conviction for first-degree reckless endangerment. The People proved that the shooting occurred in a place where a discharged gun could easily result in injury to innocent people who regularly pass close by. The Superior Court’s February 4, 2015 judgment and commitment is affirmed.

Attempted appeal from the Superior Court’s denial of an emergency motion for return of children, treated by the parties and the Superior Court as an application for a temporary restraining order, and appeal from the imposition of a $150 sanction against counsel for tardiness on the second day of the hearing below, are both dismissed for lack of jurisdiction. Generally, temporary restraining orders are not appealable interlocutory orders, and in this case the order denying the TRO motion and continuing the custody petition in this case lacked the necessary indicia of finality for two reasons: (1) the subsequent visitation and custody orders were subject to change; and, (2) the opposing party was never served, nor did she appear at the TRO hearing. With respect to the Superior Court’s order sanctioning counsel $150 for tardiness, the notice of appeal in this case specifies one party (the client) as the party taking the appeal, and only references a single order. Thus, counsel never separately appealed the Superior Court order imposing a sanction against her. Instead, she merely included her argument in the appellate brief she submitted for her client. Raising arguments for a separate appeal of a nonparty for the first time in a party’s appellate brief is impermissible under Rule 4(b) of the Virgin Islands Rules of Appellate Procedure. In light of counsel’s failure to either file a separate appeal or join her appeal with the client’s appeal pursuant to Rule 4(c), she has not presented a proper appeal to consider and – because counsel failed to file a notice of appeal within 30 days of the date that the Superior Court entered the order issuing her sanction – she waived her right to appeal that ruling. V.I. R. APP. P. 5(a)(1). The appeal is therefore dismissed in its entirety.